Would Elected Officials Really Oppose Internet Freedom?

What elected official would stake out a position opposing a declaration of Internet freedom?

Several House Democrats, it turns out. This week, minority members of the House Energy and Commerce Committee raised objections to a Republican bill that would codify in law the United States' opposition to government control of the Internet.

Democrats claim that giving a broad policy statement the force of law could disrupt domestic and international governance of the Internet, including the Federal Communications Commission's controversial 'Net Neutrality rules that are under review before a federal court.

The bill revives language included in resolutions that passed the House and Senate last year--unanimously--ahead of a United Nations conference expressing opposition to efforts by some countries to shift global Internet governance to the U.N.'s International Telecommunications Union and exert tighter controls over the flow of online content.

The concern at the time was that the World Conference on International Telecommunications held in December in Dubai could become a vehicle for countries like China, Russia and Iran to censor politically objectionable content and target dissidents.

But that resounding demonstration of bipartisanship dissolved this week amid GOP efforts to write that "sense of the Congress" statement into law.

"There are significant differences between resolutions and laws," said California's Henry Waxman, the ranking Democrat on the committee. "One of my concerns is that this policy statement is actually a backdoor attempt to undermine the FCC's open Internet rules, and hamstring the commission's ability to manage the IP transition."

At the end of a pair of business meetings this week, the Energy and Commerce Committee's communications and technology subcommittee approved the Internet freedom bill, sending it along to the full Energy and Commerce Committee.

Democrats acceded to reporting the measure by a voice vote after securing assurances from Republican leaders on the panel that they would work in good faith to address concerns about the scope of the bill.

"Nothing will be off the table. Nothing," said subcommittee Chairman Greg Walden (R-Ore.).

Sending a 'No Internet Censorship' Message

Walden reiterated the GOP's position that the bill is only about sending a message to the global community, particularly nations with a track record of Internet censorship, that positions the United States as a strong defender of online freedom and reaffirming its commitment to the current, decentralized global framework for Internet governance.

With its strictly international focus, the bill should have no bearing on the activities of the FCC, according to Walden. That includes the 'Net Neutrality rules that are widely reviled among Republican lawmakers.

"From our point of view, this legislation does not require the FCC to strike its 'Net Neutrality regulations," Walden said. "This legislation neither requires nor authorizes the FCC to take any action with respect to 'Net Neutrality or any other regulations."

The operative language in the Internet governance bill reported by the subcommittee reads:

"It is the policy of the United States to promote a global Internet free from government control and to preserve and advance the successful multi-stakeholder model that governs the Internet."

What's Net Neutrality Got to Do With It?

House Democrats imagine that those seemingly innocuous words could provide a legal foothold for litigants seeking to overturn the FCC's order, or challenge any other government actions concerning the Internet.

But 'Net Neutrality is the most immediate issue, with Verizon's challenge to the FCC's 2010 order pending before the U.S. Court of Appeals for the D.C. Circuit, which has previously overturned an action the commission took to rebuke Comcast for slowing certain content on its network.

The court is expected to hear oral arguments in the Verizon case later this year, and Democrats worry that the language in the bill about keeping the "Internet free from government control" could find its way into the arguments presented by the plaintiffs.

Democrats warned that the impact could be felt beyond the FCC, claiming that in talks with that agency and the departments of state, justice and commerce, officials had warned that the Internet governance bill could impede diplomatic efforts, ongoing litigation and other administration activities.

Moreover, the emphasis on removing government control could give ammunition to critics of ICANN around the world, who have complained about the close ties between the Internet governance body and the United States, according to California's Anna Eshoo, the ranking Democrat on the subcommittee.

"I don't think there's any reason for this--we're making a mess that doesn't need to be made," Eshoo said. "I don't think it's the path we should go down. It's not in the best interest of our country. There are unintended consequences."

Republicans counter that codifying into law on a strong, bipartisan basis last year's resolution, which only narrowly focused on the WCIT conference, is a needed step to give permanence to the U.S. position opposing Internet censorship and repression.

"Such threats unfortunately continue to grow. That's why we're taking the language from last year ... and converting it from a sense of the Congress about a specific treaty negotiation to a general statement of U.S. policy," said Energy and Commerce Committee Chairman Fred Upton (Mich.). "If we really meant what we said last year, there's no reason not to enshrine it into law."

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